action of her own legislature, erected it into the State of Kentucky in 1792, ten years before the United States was able to begin redeeming its pledge of organizing the Northwest Territory into States by creating the State of Ohio in 1802.
Maryland's resolution of October 30, 1776, contained the excellent suggestion that Congress could make good use of these western lands, and would be the best agent for organizing them into independent States; but her reasoning as to any title of the United States was fallacious, and the coercive measures hinted at, and subsequently urged, were unwarrantable. The resolution was speedily followed up by bringing the matter before Congress. November 9th, 1776, the convention took up the consideration of a letter from the president of Congress, urging them to rescind the action of Maryland ‘to pay ten dollars in lieu of the hundred acres of bounty land determined by Congress to be given to such noncommissioned officers and soldiers as shall enlist to serve during the war.’
In reply to this letter the convention resolved that the president of the convention be directed to write to Congress and inform them that Maryland had no public lands which could be pledged to the soldiers, and knew of no such lands owned by Congress; that Maryland declined to pledge the faith of the State to offer one hundred acres as bounty for enlistment until ‘the honorable Congress will specify any Land belonging to the United States as common stock to be divided among the soldiery.’
Then comes the climax: ‘That this convention are under the strongest impression that the back Lands claimed by the British Crown, if secured by the blood and treasure of all, ought, in reason, justice and policy, to be considered as a common stock, to be parceled out by Congress into free, convenient and independent governments, as the wisdom of that body shall hereafter direct; but if these (the only lands as this convention apprehend that can) should be provided by Congress at the expense of the United States to make good the proffered bounties, every idea of their being a common stock must thereby be given up; some of the states may, by fixing their own price on the Land, pay off what of their quota of the public debt they please, and have their extensive territory settled by the soldiery of the other states, whilst this state and a few others must be so Weakened and impoverished that they can hold their liberties only at the will of their powerful neighbors.’ (Am. Arch., Fifth Series, vol. 3, p. 1569.)
This letter was read in Congress November 13, 1776, and elicited no action except an order that the president inform Maryland that the faith of the United States is pledged for the bounty land. to the soldiers. But Maryland was resolute to follow up the attack. October 15, 1777, her delegates moved in Congress ‘that the United States, in Congress assembled, shall have the sole and exclusive right and power to ascertain and fix the western boundary of such states as claim to the Mississippi or South Sea and lay out the land beyond the boundary so ascertained, into separate and independent States, from time to time, as the numbers and circumstances of the people may require.’ (Journals, vol. 2, p. 290.)
This motion fully developed the Maryland idea. Coercion was to be used. This was proposed even before a confederation was established. The unorganized United States should seize the territory of the States, and deprive them of jurisdiction and property. The argument was, that some of the smaller States did not own public land, and felt it to be a hardship to lack this resource while others possessed it; that this land, if secured by ‘the blood and treasure of all,’ should be a ‘common stock’; therefore, the United States should arbitrarily limit the western boundaries of the claimant States without regard to their charter rights, and take possession of all territory which they saw fit to sequester. No wonder that such a proposition received only the vote of Maryland, and neither then nor subsequently obtained the sanction of the United States. It was abhorrent to all the principles so recently announced in the Declaration of Independence, the only charter under which the United States could, at that time, claim existence.
When the thirteen colonies became States by the Declaration of Independence, their several territorial limits remained unchanged. ‘These United Colonies are, and of right ought to be, free and independent States.’ What colonies? ‘These.’ The several colonies as they were on the 4th of July, 1776, with their respective boundaries and charter rights, became States. What defined ‘these’ colonies? Their several charters. In the same series of resolutions of October 30, 1776, in which Maryland began the assault on the rights of Virginia, she asserted her own territorial rights, and based them upon ‘the charter granted by His Majesty Charles the First to Caecilius Calvert.’
The declaration to which the several States plighted ‘our lives, our fortunes and our sacred honor,’ bound them to respect and defend each other's chartered rights by ‘the blood and treasure of all.’ But for whose benefit were these chartered rights to be respected and defended? Was all the territory of the States to become the property of Congress, and form a common stock? Every sentiment of justice revolts at the thought.
Had the war been unsuccessful, each State would have returned to its colonial condition without change of boundary. Had independence been achieved, and no union established, certainly each State would have retained its charter boundaries. In the case of conflict of title under charter claims, as in the case of Virginia's conflict with Massachusetts and Connecticut, the matter would have been settled between the claimant States, either by war or by treaty.
When independence was achieved and union was established, the charter rights of the claimants were in no way affected, except that a tribunal was provided for the peaceable adjustment of conflicting claims. This was done by the unanimous consent of the States, and was carefully guarded to prevent the United States from abusing the position of umpire.
But it was argued that these western lands were unoccupied and unsettled, and therefore different from other lands; that the settled lands, although ‘defended by the blood and treasure of all,’ were not claimed as a common stock, but inured to their respective States and were covered by their respective charters; these lands, however, were different, and the charters of their States did not protect them. The fallacy of this argument appears on its face. The charter protected the entire jurisdiction of the State. The war was undertaken to secure to each State its rights of person and property. No right accrued to the United States to usurp the jurisdiction and abridge the charter limits of any State.
Later on, New Jersey, Rhode Island and Delaware, though not going to the extreme position of Maryland, came to her aid. The land companies, which had been repudiated by Virginia, joined the alliance, and the argument was revived in a modified form.
Conceding that the jurisdiction of the several States was protected by their charters, it was urged that the property rights in the soil were not thus protected; that the King of Great Britain owned the property right to all ungranted lands within the charter limits of the several colonies until they became States, and therefore the general government, as the successor to the king, became at once the owner of these unoccupied or ‘crown lands,’ holding them within the jurisdiction of the several States. This argument, yielding half the controversy, was more plausible and less repulsive than the former, but was totally unsound.
If it applied to the unoccupied lands in the west, it must apply with equal force to all unoccupied lands in all portions of the United States, yet it was proposed that this rule should be applied only to ‘the western boundaries of such States as claim to the Mississippi or the South Seas.’ In its general application it would have been resisted by every State, and even by Maryland itself. If it applied to the crown lands, it must equally apply to proprietary rights; yet Maryland confiscated the proprietary rights and quit rents, and never proposed that the United States should inherit them. If it applied to lands, it must apply to all other species of property. If it applied to property, it must apply to all other rights and powers of the crown, and a general government, as yet unborn, was heir to all the rights and powers of the British crown. If this doctrine prevailed, what was the use of framing articles of confederation? Why was unanimous consent required? There was already a nebulous sovereignty whom nobody could locate, inheritor of the crown, and king of America.
The sentiments of the people of the United States could be reconciled to no such doctrine, in whole or in part. The strong common sense of their representatives had declared, not that all political connection between the states and Great Britain has descended to an heir, but that it ‘is totally dissolved.’